Heikkila v. Barber

• Decision Date: 01 July 1958
• Docket Number: No. 35373.,35373.
• Citation: 164 F. Supp. 587
• Parties: William HEIKKILA, Plaintiff, v. Bruce BARBER, etc., et al., Defendants.
• Court: U.S. District Court — Northern District of California

164 F. Supp. 587

William HEIKKILA, Plaintiff, v. Bruce BARBER, etc., et al., Defendants.

No. 35373.

United States District Court N. D. California, S. D.

July 1, 1958.

COPYRIGHT MATERIAL OMITTED

Lloyd E. McMurray, San Francisco, Cal., for plaintiff.

Lloyd Burke, U. S. Atty., Charles Collett, Asst. U. S. Atty., San Francisco, Cal., for defendants.

EDWARD P. MURPHY, District Judge.

This is a civil contempt proceeding instituted by a show cause order issued on motion of William Heikkila, the plaintiff in this action. The respondents are Bruce G. Barber, named defendant in this action and District Director of the Immigration and Naturalization Service, Thirteenth Immigration District, and Stan Olson, Assistant District Director for Deportation of the same district. The bases of the contempt charges are: (1) deportation of plaintiff while the action was pending; and (2) violation of a restraining order issued by Judge Harris of this court.

The Facts.

This case has a long history, none of which is pertinent here. For present purposes it suffices to note the following: plaintiff was ordered deported and his application for suspension of deportation was denied; after exhausting his administrative remedies, plaintiff instituted the present action seeking appropriate declaratory and injunctive relief. Defendant Barber answered the complaint and filed a motion to dismiss. After oral argument and filing of briefs, all matters were submitted. The events which followed are set out in chronological order:

January 14, 1958. This court issued the following order:

"Any and all relief prayed for by the plaintiff herein is hereby denied and the action is dismissed.

"Let findings of fact and conclusions of law be prepared and submitted in accordance with the rule.

"It Is So Ordered."

On the same day, the clerk made the following entries in the docket:

"Filed order denying relief prayed by plaintiff and dismissing action. Counsel to prepare findings, conclusions & judgment.

"(Murphy)"

"Mailed copies order to counsel."

March 11. Defendant's counsel submitted to the court and lodged with the clerk proposed findings of fact and conclusions of law and a proposed formal judgment.

April 3. No objections thereto having been submitted,¹ the court found satisfactory and signed the proposed findings and conclusions and the proposed formal judgment, erroneously dating them April 4. The formal judgment reads:

"Judgment.

"The above matter having been heard by the Honorable Edward P. Murphy, Judge of the above-entitled Court, and the Court having heretofore filed its Findings of Fact and Conclusions of Law, now, therefore,

"It Is Hereby Ordered, Adjudged and Decreed that plaintiff is entitled to no relief by his complaint herein; that said complaint and action be and the same are hereby dismissed, and that defendants have judgment for costs in the sum of $20.00."

On the same day the clerk made the following entries in the docket:

"Filed findings and conclusions.

"(Murphy)"

"Entered judgment—filed April 3, 1958—complaint dism. & deft. to recover costs in sum $20.00.

"(Murphy)"

"Mailed notices."

April 14. Plaintiff filed a motion "to modify the findings of fact and conclusions of law heretofore entered on the 3rd day of April, 1958," setting the hearing date initially as April 28, which was later changed to May 2.

April 18. At 5:30 p. m.² plaintiff was arrested as he left work and driven to the San Francisco International Airport. There he was placed aboard a government plane together with Olson and another immigration officer. The plane left at 6:20 p. m. and arrived in Vancouver, British Columbia at 11:30 p. m. the same day. Plaintiff was there placed in the Vancouver City Jail.

April 19. Plaintiff's counsel secured from Judge George B. Harris an order restraining "Bruce Barber, and all persons acting in concert with him or under his direction or control * * * from holding in custody, deporting or attempting to deport the plaintiff William Heikkila until the 29th day of April, 1958, or the further order of this court." The order was served on an officer of the Immigration Service the same day. Barber was notified of the order the following day, while Heikkila was still in Vancouver. Olson was not notified of the order until his return to the United States on April 21.

April 20. Plaintiff was placed aboard a Canadian Pacific Airlines plane bound for Amsterdam. The plane left at 2:00 p. m. In Amsterdam he was placed by Netherlands authorities aboard a plane bound for Helsinki via Copenhagen (change of planes in Copenhagen). The arrival in Helsinki appears to have been on the afternoon of April 22. The intervening times and dates are not clear.

Deportation of Plaintiff While the Action was Pending.

The first basis of plaintiff's contempt charges is that the respondents effected his deportation while the action was still pending in this court.

In this connection there has been much argument as to whether the order of January 14 was a final judgment for purposes of appeal. The issue thus framed is defective in two important respects: (1) it ignores the later order of this court dated April 4 and entered April 3; (2) the finality of a judgment for purposes of appeal does not necessarily determine its finality for other purposes.

Taking the view most favorable to plaintiff, it is clear from the many rulings in the Ninth Circuit that at the very least a final judgment in this action was entered on April 4.³ See, e. g., Reynolds v. Wade, 1957, 241 F.2d 208; Cedar Creek Oil & Gas Co. v. Fidelity Gas Co., 1956, 238 F.2d 298; Steccone v. Morse-Starrett Products Co., 1951, 191 F.2d 197; In re California Associated Products Co., 1950, 183 F.2d 946; Kam Koon Wan v. E. E. Black, Ltd., 1950, 182 F.2d 146; Colvin v. Woods, 1950, 180 F.2d 893; Hoiness v. United States, 1947, 165 F.2d 504; J. E. Haddock, Ltd., v. Pillsbury, 1946, 155 F.2d 820; Liberty Mutual Insurance Co. v. Pillsbury, 1946, 154 F.2d 559; see also the recent discussion by the Supreme Court in United States v. F. & M. Schaefer Brewing Co., 1958, 356 U.S. 227, 78 S.Ct. 674, 2 L.Ed. 2d 721.

But it appears to be plaintiff's position—there is no specific reference by either side to the judgment of April 4—that his subsequent motion to amend the findings of fact, which were signed and entered on the same day as the separate judgment, in some way effected a stay of this judgment.

There is nothing in the Federal Rules of Civil Procedure which supports plaintiff's position. Clearly a motion to amend the findings would not have such an effect on a money judgment⁴ even though the money judgment is automatically so deprived of finality for ten days following its entry.⁵ A fortiori it does not have that effect on a judgment denying injunctive relief, which is immediately final for all purposes.⁶ Cf. Holsinger v. City of Fresno, 9 Cir., 1957, 246 F.2d 263. The fact that a motion to amend the findings deprives both judgments of their finality for purposes of appeal⁷ is hardly significant inasmuch as during the ten days following entry exactly the reverse situation obtains in the case of the money judgment (i. e., during that period the money judgment is final for purposes of appeal,⁸ just as the judgment denying injunctive relief, even though it is not final for purposes of execution). In brief: on April 18, though the running of plaintiff's time for appeal had terminated,⁹ no provision in the Federal Rules of Civil Procedure operated to stay the judgment and thereby prevent deportation.

The question remaining is whether, wholly apart from the Federal Rules, there is some principle of law by virtue of which a motion to amend the findings operated to stay the judgment in this particular case.

Plaintiff urges that such a principle does exist, citing: Merrimack River Savings Bank v. City of Clay Center, 1911, 219 U.S. 527, 31 S.Ct. 295, 55 L.Ed. 320; Lamb v. Cramer, 1932, 285 U.S. 217, 52 S. Ct. 315, 76 L.Ed. 715; Clay v. Waters, 8 Cir., 1910, 178 F. 385; United States v. Shipp, 1906, 203 U.S. 563, 27 S.Ct. 165, 51 L.Ed. 319; Richard v. Van Meter, C.C.D.C.1827, 20 Fed.Cas. page 682, No. 11,763; and Berry v. Midtown Service Corp., 2 Cir., 1939, 104 F.2d 107, 122 A. L.R. 1341.

The main action in the Merrimack case sought an injunction against destruction of certain property upon which there was a mortgage securing bonds held by the plaintiff. The circuit court determined that it lacked jurisdiction and dismissed the action. An appeal was taken to the Supreme Court, which dismissed the appeal without opinion. But "before any mandate had issued or could issue under the rules of the Supreme Court, and pending the right of petitioners to file an application for a rehearing" (which they subsequently did), certain of the defendants proceeded to remove and destroy the property in question. The Court held that these acts constituted contempt.

The finding of contempt was based upon the fact that although the appeal had been dismissed, a contrary decision on the merits was still possible because the time within which to apply for a rehearing had not yet expired.

The situation in the instant case is quite to the contrary. The equivalent of a rehearing under the Federal Rules is a motion for a new trial pursuant to Rule 59(a). Slater v. Peyser, 1952, 91 U.S.App.D.C. 314, 200 F.2d 360; Seymour v. Potts & Callahan Contracting Co., D.C.1941, 2 F.R.D. 38, 39. Plaintiff had "10 days after entry of the judgment" within which to make this motion. Fed.R.Civ.P. 59(b). No such motion was made, and by April 18 the ten day period had long since expired. All that was pending on April 18 was a motion to modify the findings pursuant to Rule 52 (b).

It is well settled that the province of findings is to apprise prospective appellate courts of the basis of the trial court's decision.¹⁰ Rule 52(b), providing for amendment of findings or additional findings upon motion, allows either party to make such a motion....